Commonwealth v. Pugh, SJC–10895.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtLENK
Citation969 N.E.2d 672,462 Mass. 482
Decision Date15 June 2012
Docket NumberSJC–10895.
PartiesCOMMONWEALTH v. Allissa PUGH.

462 Mass. 482
969 N.E.2d 672

COMMONWEALTH
v.
Allissa PUGH.

SJC–10895.

Supreme Judicial Court of Massachusetts,
Worcester.

Submitted Nov. 9, 2011.
Decided June 15, 2012.


[969 N.E.2d 676]


Jaclyn R. Greenhalgh, Worcester (Peter L. Ettenberg with her) for the defendant.

Ellyn H. Lazar–Moore, Assistant District Attorney, for the Commonwealth.


The following submitted briefs for amici curiae:

Alexa Kolbi–Molinas, of New York, & Sarah Wunsch, Boston, for American Civil Liberties Union & another.

Jane Larmon White, Committee for Public Counsel Services, Boston, for Committee for Public Counsel Services.

McKenzie E. Webster, Boston, for Massachusetts Association of Criminal Defense Lawyers.

Andrea C. Kramer, Boston, Melissa Garlick, Kelly N. Griffin, Dancers, Victoria Fernandez, & Carolyn G. Goodwin for Women's Bar Association of Massachusetts.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

[462 Mass. 483]We are asked to consider whether a woman in the midst of unassisted childbirth may be held criminally responsible for the unintentional death of her viable fetus. In 2009, after a jury-waived trial, a judge in the Superior Court found the defendant guilty of involuntary manslaughter for “inflicting fatal injuries on a viable and near full term fetus during the birthing process” in violation of her “legal duty ... to refrain from wanton or reckless acts committed against her own viable fetus.” Specifically, the judge concluded that the defendant committed wanton or reckless acts by using “a significant amount of force” to bring about the delivery, and by failing to summon medical help on realizing she was giving birth in the “breech” position, see note 5, infra, thereby disregarding a substantial likelihood of harm. See G.L. c. 265, § 13; Commonwealth v. Catalina, 407 Mass. 779, 789, 556 N.E.2d 973 (1990). The judge sentenced the defendant to two and one-half years in a house of correction, followed by a term of probation, but allowed the defendant's motion to stay execution of the sentence pending appeal. The defendant appealed, and we transferred the case from the Appeals Court on our own motion.

On appeal, the defendant claims that (1) the evidence was [462 Mass. 484]legally insufficient to support her conviction of involuntary manslaughter because the Commonwealth did not prove that the baby died as a result of injuries caused by the defendant applying a significant amount of force to bring about the delivery; (2) the judge erred in imposing a criminal law duty on a woman in childbirth to seek medical assistance; and (3) even if such a duty exists, the judge erred in concluding that the defendant, in breaching that duty, disregarded a substantial risk of harm to the fetus when she decided to give birth unaided.

We conclude that the evidence is insufficient to convict the defendant on the theory that she was wanton or reckless in her acts of commission (i.e., exerting force to bring about the birth), because the Commonwealth failed to prove that, once she decided to give birth unassisted, the defendant had any alternative safe course of action. Additionally, we conclude that, in light of the judge's findings that the Commonwealth had not proved that the baby was born alive, or that summoning medical assistance would have saved the baby's life, there is insufficient evidence that the

[969 N.E.2d 677]

defendant's act of omission (i.e., failure to call for assistance) was the legal or proximate cause of the baby's death.

Finally, because the matter is of significant public importance, has been thoroughly briefed,1 and may recur in future cases, see Commonwealth v. Washington W., 457 Mass. 140, 142 n. 3, 928 N.E.2d 908 (2010), S. C., 462 Mass. 204, 967 N.E.2d 615 (2012), we consider the question of duty and decline to recognize a duty of a woman, in these circumstances, to summon medical assistance, breach of which may give rise to criminal liability for involuntary manslaughter. As we explain more fully below, existing criminal laws proscribing murder, most late-term abortions, and the neglect and abuse of children appropriately protect the State's interests in safeguarding viable fetuses and living children without the need to subject all women undergoing unassisted childbirth to possible criminal liability. Imposing a broad and ill-defined duty on all women to summon medical intervention during childbirth would trench on [462 Mass. 485]their “protected liberty interest in refusing unwanted medical treatment.” Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Moreover, such a duty is inchoate and would be highly susceptible to selective enforcement.

Accordingly, we reverse.

1. Facts and procedural background. a. Evidence at trial. The defendant challenges the sufficiency of the evidence, which we review in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979). The defendant was alone during the salient events surrounding the delivery and did not testify at trial. She had been questioned by police in three separate interviews conducted within one week of the delivery. One of the officers present during the nine hours of recorded interrogation testified at trial as to the defendant's description of the events. The entirety of the videotape was also in evidence. We summarize the defendant's statements based on the officer's testimony and our own review of the videotape.

At the time of the delivery, the defendant was twenty-eight years old, worked as an attendant at an animal hospital, and was the mother of an eight year old boy.2 She lived with her son, her boy friend (who

[969 N.E.2d 678]

was also her son's father), and her boy friend's aunt.

The defendant stated that, in October, 2006, after not having menstruated since August, she determined from a home pregnancy[462 Mass. 486]test that she was pregnant.3 She told no one. On January 2, 2007, the defendant went to work at noon. At approximately 3 p.m., she began to feel pain in her stomach that she thought might be contractions. Based on how long she thought she had been pregnant, the defendant, according to her statements, believed she was having a miscarriage. On returning home at 4 p.m., she informed her boy friend and his aunt that she was not feeling well and went to her bedroom. She lay down on her bed, and moved from the bathroom to the bed several times over the course of approximately thirty minutes. Eventually, she sat on the toilet. Fifteen minutes later her “water” broke.4

The defendant stated to the police, “It wasn't until I sat down and my water broke that I knew what was happening.” She then reached inside herself and felt a foot. From a birthing class she had attended during her first pregnancy, eight years earlier, the defendant knew this meant the baby was presenting in a “breech” position, a presentation which could create complications for the delivery and commonly results in cesarean sections. 5 The defendant pushed approximately ten times and pulled on the baby's feet, legs, and body to hasten the delivery; she stated during the interviews that she thought that a breech baby would have a better chance of survival if the delivery occurred as quickly as possible.6 After approximately five minutes [462 Mass. 487]of this combined effort, the baby fully emerged from the defendant's body.

The baby was blue. The defendant stated that she tried scooping out the baby's mouth and made repeated attempts at rescue breaths, but the baby's color never changed and the baby never appeared to cry or move.7 Despite her efforts, the defendant could not resuscitate the baby. She disposed of the baby's body in the trash. During the delivery and immediately thereafter, she did not call for help or seek emergency medical assistance. On

[969 N.E.2d 679]

discovery of the mangled body several days later, a police investigation led officers to the defendant.

Three medical experts testified at trial: the prosecutor called Dr. Henry Nields, acting chief medical examiner for the Commonwealth of Massachusetts, and Dr. Drucilla Roberts, a perinatal pathologist at Massachusetts General Hospital; the defendant called Dr. Richard T. Callery, chief medical examiner for the State of Delaware. Because the medical testimony provides relevant context for findings as to the baby's cause of death, we recite it in detail.

Nields, who performed the autopsy, described the baby as a “full-term male infant.” He testified to evidence of both ante mortem and post mortem injuries on the body, though for a number of injuries Nields could not determine conclusively whether they occurred ante mortem or post mortem. 8 Ante mortem injuries, he testified, were characterized by the presence of blood, which “indicates that the heart was beating at the time of that injury,” and that the baby therefore must have been alive when the injuries occurred. These injuries included contusions to the baby's scalp, neck, liver, abdomen, testicles, and diaphragm. The ante mortem injuries “could have been sustained either during delivery or shortly after delivery,” but “[i]t would be extraordinarily unlikely for those to have been sustained in utero.” Nields concluded that [462 Mass. 488]the baby had been alive in utero, after leaving the uterus, and while in the birth canal. However, he could not “tell for certain” that the baby was alive after he left the birth canal.9 The cause of death, according to Nields, was “peripartum injuries of uncertain etiology”; that is, the injuries occurred around the time of the birth, either before, during, or immediately after delivery. He was also unable to determine which, if any, of the injuries resulted in death. According to Nields, the manner of death was “undetermined.” Finally, Nields testified that it is “possible,” but not certain, that the baby would have lived if the defendant had sought medical attention during the birth.

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29 practice notes
  • Bennett v. United States, No. 16-2039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 5, 2017
    ...chosen to run the risk rather than alter [her] conduct so as to avoid the act or omission which caused the harm."Commonwealth v. Pugh , 462 Mass. 482, 969 N.E.2d 672, 685 (2012) (quoting Commonwealth v. Welansky , 316 Mass. 383, 55 N.E.2d 902, 902 (1944) ) (alterations in original).11 Secti......
  • State v. Robat, No. 2010–61–C.A.
    • United States
    • United States State Supreme Court of Rhode Island
    • July 12, 2012
    ...was ambiguous and could not serve as the foundation for multiple inferences Id. at 768. 33. In the recent case of Commonwealth v. Pugh, 462 Mass. 482, 969 N.E.2d 672 (2012), the Supreme Judicial Court of Massachusetts declined to impose a duty on a mother to summon assistance during an in-h......
  • Commonwealth v. Peno, SJC-12464
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 10, 2020
    ...based on the mother's conduct while pregnant, and even more so two and one-half years after the child's birth. See Commonwealth v. Pugh, 462 Mass. 482, 484, 495 n.21, 969 N.E.2d 672 (2012) (where mother was on trial for involuntary manslaughter after child died during unassisted childbirth,......
  • Commonwealth v. Ashford, SJC-12874
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 16, 2020
    ...to run the risk rather than alter [his or her] conduct so as to avoid the act or omission which caused the harm.’ "Commonwealth v. Pugh, 462 Mass. 482, 496-497, 969 N.E.2d 672 (2012), quoting Commonwealth v. Welansky, 316 Mass. 383, 398-399, 55 N.E.2d 902 (1944).6 In Commonwealth v. Widener......
  • Request a trial to view additional results
29 cases
  • Bennett v. United States, No. 16-2039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 5, 2017
    ...chosen to run the risk rather than alter [her] conduct so as to avoid the act or omission which caused the harm."Commonwealth v. Pugh , 462 Mass. 482, 969 N.E.2d 672, 685 (2012) (quoting Commonwealth v. Welansky , 316 Mass. 383, 55 N.E.2d 902, 902 (1944) ) (alterations in original).11 Secti......
  • State v. Robat, No. 2010–61–C.A.
    • United States
    • United States State Supreme Court of Rhode Island
    • July 12, 2012
    ...was ambiguous and could not serve as the foundation for multiple inferences Id. at 768. 33. In the recent case of Commonwealth v. Pugh, 462 Mass. 482, 969 N.E.2d 672 (2012), the Supreme Judicial Court of Massachusetts declined to impose a duty on a mother to summon assistance during an in-h......
  • Commonwealth v. Peno, SJC-12464
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 10, 2020
    ...based on the mother's conduct while pregnant, and even more so two and one-half years after the child's birth. See Commonwealth v. Pugh, 462 Mass. 482, 484, 495 n.21, 969 N.E.2d 672 (2012) (where mother was on trial for involuntary manslaughter after child died during unassisted childbirth,......
  • Commonwealth v. Ashford, SJC-12874
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 16, 2020
    ...to run the risk rather than alter [his or her] conduct so as to avoid the act or omission which caused the harm.’ "Commonwealth v. Pugh, 462 Mass. 482, 496-497, 969 N.E.2d 672 (2012), quoting Commonwealth v. Welansky, 316 Mass. 383, 398-399, 55 N.E.2d 902 (1944).6 In Commonwealth v. Widener......
  • Request a trial to view additional results

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